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Hurley v. Jess

United States District Court, E.D. Wisconsin

December 31, 2019

JOEL HURLEY, Petitioner,
v.
CATHY A. JESS, Respondent.

          ORDER ADOPTING MAGISTRATE JUDGE DUFFIN'S RECOMMENDATION (DKT. NO. 22), DENYING PETITION FOR WRIT OF HABEAS CORPUS (DKT. NO. 1), DISMISSING CASE AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

          HON. PAMELA PEPPER CHIEF UNITED STATES DISTRICT JUDGE.

         I. Introduction

         On February 26, 2016, the petitioner, represented by counsel, filed a petition for a writ of habeas corpus under 28 U.S.C. §2254, challenging his March 16, 2012 conviction in Marinette County Circuit Court on one count of repeated sexual assault of a child in violation of Wis.Stat. §948.025. Dkt. No. 1. He paid the $5.00 filing fee. On June 8, 2016, this court screened the petition and ordered the respondent to answer or otherwise respond. Dkt. No. 4. The respondent filed her response in September of 2016 and the parties concluded briefing on August 31, 2017.

         Due to the court's heavy caseload, the court referred the case to Magistrate Judge William E. Duffin for a report and recommendation. Dkt. No. 21. On August 22, 2019, Judge Duffin issued a decision recommending that this court deny the petition. Dkt. No. 22. The recommendation advised the petitioner that he needed to file written objections within fourteen days of the date he was served with the recommendation. Id. at 20. To date, the petitioner has not filed objections to the recommendation. Because Judge Duffin's reasoning is not clearly erroneous, the court will adopt it and will dismiss the petition.

         II. Analysis

         A. Standard of Review

         The Federal Rules of Civil Procedure apply to habeas petitions filed under 28 U.S.C. §2254. See Rule 12 of the Rules Governing Section 2254 Cases in the United States District Courts. Under Fed.R.Civ.P. 72(b), if a party does not object to a magistrate judge's report and recommendation, the district court reviews the magistrate judge's recommendation for clear error. Fed.R.Civ.P. 72(b); Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999) (citations omitted). Because the petitioner has not filed any objections, this court's only task is to review Judge Duffin's report and recommendation for clear error.

         B. Judge Duffin's Report and Recommendation (Dkt. No. 22)

         1. Facts and Procedural History

         The following is a quote from the “Facts and Procedural History” section of Judge Duffin's report and recommendation:

In September of 2010, fifteen-year-old MCN told her mother that, when she was in elementary school, her then-stepfather, [the petitioner], would lay in bed with her and sexually assault her with his hand. (ECF No. 8-15 at 94.) MCN's mother and [the petitioner] had been divorced for years and, although MCN could recall certain details of the assaults, she was unable to recall many details as to when the assaults occurred. Other than recalling that the assaults occurred after the family had moved in a newly built home but before she entered middle school in fifth grade, she could not be more specific. (ECF No. 8-15 at 96, 110, 116.) Other evidence demonstrated that the family moved into the home in early-2003 (ECF No. 9-16 at 91), and MCN would have begun fifth grade in late-2005.
MCN also reported other incidents of a sexual nature involving [the petitioner]. In one, [the petitioner] chased her around the house in a playful manner, caught her, and took off her clothes. She did not recall the context of this incident, but it might have been related to getting her to take a bath or ready for bed. (ECF No. 8-15 at 112.) In middle school, [the petitioner] would weigh her naked, and would sometimes carry her there by putting her on his shoulders while she was naked.[1] (ECF No. 8-15 at 98-99.) And there was one last instance where he got into the shower with her. (ECF No. 8-15 at 97.) MCN was naked but Hurley was wearing his underwear. Hurley asked MCN if she would tell her mother about it and she said she would. (ECF No. 8-15 at 97-98.) But she was afraid and did not report it until she was 15.
In July 2011, Hurley was charged with one count of repeated sexual assault of a child occurring between 2000 and 2005. (ECF No. 18.[2])
After MCN accused [the petitioner], his sister contacted law enforcement and reported that, when she was between eight and ten years old, [the petitioner] repeatedly sexually assaulted her. These incidents occurred in the early to mid-1980s, roughly 20 years before the sexual assault of MCN, when [the petitioner] was about 12 to 14 years old.

         Over [the petitioner's] objection, his sister was allowed to testify about [the petitioner's] alleged sexual assault of her. Prior to her testimony, the court instructed the jury as follows:

Members of the Jury, evidence will now be presented regarding other conduct of the defendant for which the defendant is not on trial, specifically evidence will be presented that the defendant engaged in sexual intercourse with Janell Goldsmith. Sexual intercourse means any intrusion however slight by any part of a person's body or of any object into the genital or anal opening of another. Emission of semen is not required.
If you find this conduct did occur, you should consider it only on the issues of opportunity and method of operation. You may not consider this evidence to conclude that the defendant has a certain character or a certain character trait and that the defendant acted in conformity with that ...

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